Citation Nr: 0817294
Decision Date: 05/27/08 Archive Date: 06/09/08
DOCKET NO. 06-28 167A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
degenerative changes of the right shoulder.
2. Entitlement to service connection for a lumbar spine
disorder, to include degenerative joint disease.
3. Entitlement to service connection for a bilateral knee
disorder.
4. Entitlement to service connection for chronic Hepatitis C.
5. Entitlement to service connection for a stomach disorder.
6. Entitlement to service connection for pes planus.
7. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
depressive disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher Murray, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1977 to
July 1980.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a September 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina.
The veteran testified before the undersigned at a March 2008
hearing at the RO. A transcript of that hearing is of
record.
The Board notes that the veteran raised the issue of
entitlement to service connection for an ankle sprain at both
the April 2006 RO and March 2008 Board hearings. As this
claim has not been adjudicated, it is REFERRED to the RO for
the appropriate action.
The issues of entitlement to service connection for a stomach
disorder and pes planus and whether new and material evidence
has been received to reopen a claim of entitlement to service
connection for a depressive disorder are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. A March 2004 rating decision denied the veteran's claim of
entitlement to service connection for degenerative changes
of the right shoulder. The veteran was notified of his
appellate rights, but did not file a notice of
disagreement within one year of the rating decision.
2. Evidence received since the March 2004 rating decision is
cumulative of the evidence of record at the time of the
March 2004 denial and does not relate to an unestablished
fact necessary to substantiate the claim of entitlement to
service connection for degenerative changes of the right
shoulder.
3. Chronic Hepatitis C was not manifested in service, and
there is no competent medical evidence establishing an
etiological relationship between the veteran's current
chronic Hepatitis C and his active service.
4. A lumbar spine disorder, to include degenerative joint
disease, was not manifested in service or within one year
of service discharge, and there is no competent evidence
establishing an etiological relationship between the
veteran's current degenerative joint disease of the lumbar
spine and his active service.
5. There is no competent medical evidence to establish the
veteran currently suffers from a chronic bilateral knee
disorder.
CONCLUSIONS OF LAW
1. The March 2004 rating decision which denied the veteran's
claim of entitlement to service connection for
degenerative changes of the right shoulder is final. 38
U.S.C.A. § 7105(c) (West 2002).
2. Evidence received since the March 2004 rating decision in
connection with veteran's claim of entitlement to service
connection for degenerative changes of the right shoulder
is not new and material. 38 U.S.C.A § 5108 (West 2002);
38 C.F.R. § 3.156 (2007).
3. Chronic Hepatitis C was not incurred in or aggravated by
active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
4. A lumbar spine disorder, to include degenerative joint
disease, was not incurred in or aggravated by active
service, and may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1112, 1113, 1131 (West 2002); 38
C.F.R. §§ 3.303, 3.307, 3.309(a) (2007).
5. A chronic bilateral knee disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. § 1131;
38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103(a) (West 2002). VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to a claim. 38 C.F.R. §
3.159 (2007). See also Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held
that in order to successfully reopen a previously and finally
disallowed claim, the law requires the presentation of a
special type of evidence - evidence that is both new and
material. The terms "new" and "material" have specific,
technical meanings that are not commonly known to VA
claimants. Because these requirements define particular
types of evidence, when providing the notice required by the
VCAA it is necessary, in most cases, for VA to inform
claimants seeking to reopen a previously and finally
disallowed claim of the unique character of evidence that
must be presented. This notice obligation does not modify
the requirement that VA must provide a claimant notice of
what is required to substantiate each element of a service-
connection claim. See Dingess v. Nicholson, 19 Vet. App. 473
(2006). In other words, VA must notify a claimant of the
evidence and information that is necessary to reopen the
claim and VA must notify the claimant of the evidence and
information that is necessary to establish his or her
entitlement to the underlying claim for the benefit sought.
After careful review of the record, the Board finds that VA
provided the veteran with all necessary and proper VCAA
notice. In this regard, a June 2005 letter notified the
veteran of the evidence and information necessary to
establish entitlement to his service connection claims for
degenerative changes of the right shoulder, chronic Hepatitis
C, degenerative joint disease of the lumbar spine and a
bilateral knee disorder. The June 2005 letter also provided
appropriate notice regarding what constitutes new and
material evidence and specifically informed him what evidence
and information was necessary to reopen his claim of service
connection for degenerative changes of the right shoulder.
This letter advised the veteran of the types of evidence VA
would assist him in obtaining as well as his own
responsibilities with regard to identifying relevant
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002); Charles v. Principi, 16 Vet. App. 370 (2002).
Finally, the June 2005 letter expressly informed the veteran
of the need to submit any pertinent evidence in his
possession.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in Dingess v. Nicholson, 19 Vet. App.
473, 484 (2006), which held that the VCAA notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded. A March 2006 VCAA letter provided such notice.
In light of the above, the Board finds that all notices
required by VCAA and implementing regulations were furnished
to the veteran and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
VA must also make reasonable efforts to assist the appellant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007).
Service medical records are associated with claims file.
Post-service treatment records and reports from the Columbia
VA Medical Center (VAMC) and Rock Hill Clinic have also been
obtained. The veteran has submitted treatment records and
reports from Elliott White Springs Memorial Hospital (EWSMH)
and Barnett Family Practice. He has not identified any
additional medical records that should be obtained. See 38
U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4)
(2007); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir.
2002).
A VA examination was not provided in conjunction with the
veteran's claims for degenerative joint disease of the lumbar
spine and a bilateral knee disorder, and the Board notes that
the evidence of record does not warrant one. See 38 C.F.R. §
3.159(c)(4) (2007). VA has a duty to provide a VA
examination when the record lacks evidence to decide the
veteran's claim and there is evidence of (1) a current
disability, (2) an in-service event, injury, or disease, and
(3) some indication that the claimed disability may be
associated with the established event, injury, or disease.
Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
With regards to degenerative joint disease of the lumbar
spine, there is nothing in the record, other than the
veteran's own lay statements, that his currently diagnosed
degenerative joint disease of the lumbar spine is
etiologically related to his active service. As he is not
competent to provide a competent etiological opinion, the
record is silent for a nexus between the veteran's current
disability and his active service. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). With respect to a
bilateral knee disorder, there is no competent medical
evidence of record to indicate the veteran has been diagnosed
with such a disorder. Thus, the veteran has not satisfied
all the elements of McLendon for either service connection
claim; therefore, VA is not required to provide him with a VA
examination in conjunction with his claims.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the appellant
in developing the facts pertinent to the issue on appeal is
required to comply with the duty to assist. 38 U.S.C.A.
§§ 5103 and 5103A; 38 C.F.R. § 3.159.
Analysis
A. New and Material Evidence
Generally, an unappealed RO denial is final under 38 U.S.C.A.
§ 7105(c), and the claim may only be reopened through the
receipt of 'new and material' evidence. If new and material
evidence is presented or secured with respect to a claim that
has been disallowed, VA must reopen the claim and review its
former disposition. 38 U.S.C.A. § 5108. See Hodge v. West,
155 F.3d 1356, 1362 (Fed. Cir. 1998).
The veteran's request to reopen his claim was received in
June 2005, and the regulation applicable to his appeal
provides that new and material evidence means existing
evidence that by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. 38 C.F.R. § 3.156(a)
(2007). New and material evidence can be neither cumulative
nor redundant of the evidence of record at the time of the
last prior final denial of the claim sought to be reopened,
and must raise a reasonable possibility of substantiating the
claim. Id.
In a March 2004 rating decision, the veteran's claim of
service connection for degenerative changes of the right
shoulder was denied on the basis that there was no competent
medical evidence providing an etiological relationship
between the veteran's current disorder and an event or injury
in service. The veteran was notified of his appellate
rights, but did not initiate an appeal of the decision;
therefore, the RO's March 2004 decision is final.
38 U.S.C.A. § 7105.
As noted above, the veteran submitted a reopened claim for
entitlement to service connection for degenerative changes of
the right shoulder in June 2005. Although the RO reopened
the veteran's previously disallowed claim in its September
2005 rating decision, the Board is not bound by such
decision. The preliminary question of whether a previously
denied claim should be reopened is a jurisdictional matter
that must be addressed before the Board may consider the
underlying claims on the merits. See Barnett v. Brown, 83
F.3d 1380, 1383 (Fed. Cir. 1996).
Evidence received prior to the March 2004 rating decision
included service medical records and VA treatment records
dated September 2003 through November 2003. According to the
March 2004 rating decision, the RO denied the veteran's claim
for service connection because there was no competent medical
evidence of record establishing an etiological link between
the veteran's diagnosed degenerative changes of the AC joint
of the right shoulder and his active service.
New evidence received since the March 2004 RO rating decision
VA treatment records dated November 2003 through January
2007, private treatment records from EWSMH and Barnett Family
Practice, statements from the veteran and hearing transcripts
from an April 2006 hearing before a Decision Review Officer
(DRO) and a March 2008 hearing before the Board.
The relevant VA treatment records indicate the veteran
continues to suffer from degenerative changes of the right
shoulder. January 2002 treatment records from Barnett Family
Practice indicate the veteran was then diagnosed with
bursitis and tendonitis of the right shoulder (the Board
observes that this diagnosis was revised from left shoulder
to right shoulder bursitis and tendonitis by a May 2005
letter from Dr. Morris).
After careful review, the Board concludes that the newly
received evidence is cumulative of the record prior to the
March 2004 rating decision, and does not raise a reasonable
possibility of substantiating the veteran's claim. The VA
and private treatment records and reports do not contain any
competent medical opinion suggesting an etiological
relationship between the veteran's current right shoulder
disorder and his active service. Rather, the new medical
evidence does nothing more than show that the veteran
continues to suffer from degenerative changes of the right
shoulder. As the veteran has not submitted new and material
evidence, the application to reopen the previously denied
claim of entitlement to service connection for degenerative
changes of the right shoulder must be denied.
As a final note, the Board acknowledges that the veteran
stated at the April 2004 DRO hearing that he was informed by
a VA physician that his current right shoulder disorder is
etiologically related to his active service. However, this
assertion is not supported by the competent medical evidence
of record. As discussed above, there is no competent medical
opinion contained in the record establishing an etiological
link between the veteran's current right shoulder disorder
and his active service. In this regard, the Board notes that
the connection between what a physician said and the layman's
account of what he purportedly said, when filtered through a
layman's sensibilities is attenuated and inherently
unreliable. See Robinette v. Brown, 8 Vet. App. 69, 77
(1995); Dean v. Brown, 8 Vet. App. 449 (1995). As such,
these statements do not constitute 'new and material'
evidence upon which to reopen the veteran's claim for service
connection for degenerative changes of the right shoulder.
B. Service Connection
Under 38 U.S.C. § 7104, Board decisions must be based on the
entire record, with consideration of all the evidence. In
Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held,
in pertinent part, that the law requires only that the Board
address its reasons for rejecting evidence favorable to the
claimant. The Federal Circuit has also held that the Board
must review the entire record, but does not have to discuss
each piece of evidence. Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110. That an injury or disease
occurred in service is not enough; there must be chronic
disability resulting from that injury or disease. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
injury or disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. 38
C.F.R. § 3.303(d).
In addition, certain chronic disabilities, including
arthritis, are presumed to have been incurred in service if
manifest to a degree of 10 percent within one year of
discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002); 38 C.F.R. §§ 3.307, 3.309(a).
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. Reasonable doubt is a substantial doubt
and one within the range of probability as distinguished from
pure speculation or remote possibility. See 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102 (2007).
Hepatitis C
The veteran maintains that his currently diagnosed chronic
Hepatitis C is related to his active service. Specifically,
he contends that he contracted Hepatitis C as a result of
receiving immunizations via jet air gun while in service.
While the evidence reveals that the veteran currently suffers
from chronic Hepatitis C, the competent, probative evidence
of record does not etiologically link the veteran's current
disability to his service or any incident or disorder
incurred therein. In this regard, there is no evidence of
treatment for or diagnosis of Hepatitis C during active
service. In addition, a June 1980 Report of Medical
Examination, completed upon the veteran's release from active
duty, give no indication the veteran then suffered from
Hepatitis C.
Medical evidence of record first indicate a diagnosis of
Hepatitis C in August 2004. At his March 2008 Board hearing,
the veteran testified he was diagnosed with the disorder in
1998 or 1999, nearly 20 years post service. There is no
evidence of record to indicate the veteran had received a
diagnosis or treatment for Hepatitis C prior to this time.
The Board may, and will, consider in its assessment of a
service connection claim the passage of a lengthy period of
time wherein the veteran has not complained of the malady at
issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999),
aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358
(Feb. Cir. 2002) (en banc).
In sum, the Board finds that there is no evidence of chronic
Hepatitis C in service. The threshold question therefore is
whether there is sufficient medical evidence to establish an
etiological link between the veteran's current Hepatitis C
and his active service. The preponderance of the evidence is
against this aspect of the veteran's claim. In this regard,
the Board notes an October 2006 VA examination, in which the
examiner found it to be less likely than not that the
veteran's current Hepatitis C was contracted by the use of
air gun injectors during service. The examiner stated that,
while transmission of Hepatitis C via air gun injector is
biologically plausible, it has not been demonstrated to have
occurred. In addition, the examiner pointed out that the
veteran has a history of snorting cocaine, which is a well-
established risk factor for Hepatitis C.
The Board acknowledges that the veteran has submitted a
number of other Board decisions in an effort to support his
claim. Although the Board strives for consistency in issuing
its decisions, previously issued decisions will be considered
binding only with regard to the specific case decided. Prior
decisions in other appeals may be considered in a case to the
extent that they reasonably relate to the case, but each case
presented to the Board will be decided on the basis of the
individual facts of the case in light of the appellate
procedures and substantive law. 38 C.F.R. § 20.1303 (2007).
Therefore, while the Board has considered the other
decisions, they are not binding and do not control the
outcome of this appeal; rather, the facts of this particular
case must be the determining factor.
In sum, the veteran has produced no competent evidence or
medical opinion in support of his claim that his present
Hepatitis C is the result of his active service. By
contrast, a VA examiner concluded that the veteran's current
Hepatitis C is less likely than not a result of air gun
injections, citing other risk factors, including prior
cocaine use. In addition, the absence of any medical records
of a diagnosis or treatment for over 20 years after service
is probative evidence against the claim for direct service
connection. Accordingly, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for Hepatitis C, and the benefit of the
doubt rule does not apply. See 38 U.S.C.A. § 5107 (West
2002).
Lumbar Spine Disorder
The veteran contends that his currently diagnosed
degenerative joint disease of the lumbar spine is the result
of running three miles a day during PT exercises in active
duty.
While the evidence of record reveals that the veteran
currently suffers from degenerative joint disease of the
lumbar spine, the competent, probative evidence of record
does not etiologically link the veteran's current disability
to his service or any incident or disorder incurred therein.
With regards to direct service connection, service medical
records dated July 1977 indicate the veteran sought treatment
for a sharp pain in his lower back, diagnosed as a muscle
strain. There is no indication the veteran sought further
treatment for any back condition during his active service.
In addition, during the June 1980 clinical examination for
separation from service, the veteran's spine and
musculoskeletal system were noted as normal. Thus, there is
no medical evidence that shows the veteran suffered from a
chronic disorder of the lumbar spine during service.
When a disorder is first diagnosed after service, service
connection is warranted for that condition if the competent
evidence shows it was incurred in service. 38 C.F.R.
§ 3.303(d). To prevail on the issue of service connection,
there must be medical evidence of a current disability;
medical evidence of in-service occurrence or aggravation of a
disease or injury; and medical evidence of a nexus between an
in-service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v. West, 12 Vet App. 341, 346 (1999). In this case, the
veteran has a current diagnosis of degenerative joint disease
of the lumbar spine. Also, as noted above, the veteran
sought treatment for a muscle strain during service. The
remaining question, therefore, is whether there is medical
evidence of a relationship between the current disability and
military service.
In the instant case, the veteran has not produced a competent
medical opinion establishing an etiological link between his
current lumbar spine disorder and an event or occurrence in
service. The Board acknowledges that the veteran himself has
claimed his currently diagnosed degenerative joint disease of
the lumbar spine arises from his active service. However, as
noted above, as a layman, the veteran has no competence to
give a medical opinion on the diagnosis or etiology of a
condition. See Espiritu, supra. Consequently, lay
assertions of medical diagnosis or etiology cannot constitute
evidence upon which to grant the claim for service
connection. See Lathan v. Brown, 7 Vet. App. 359 (1995).
In addition, there is no evidence of continuity of
symptomology since active service in the present case. The
evidence of record indicates that while the veteran sought
treatment for back pain as early as June 2005, he was first
diagnosed with degenerative joint disease of the lumbar spine
in April 2006. This is more than 25 years since the veteran
separated from service; this significant lapse in time
between the active service and the first evidence of a
disorder of the lumbar spine weighs against the veteran's
claim. The Board may, and will, consider in its assessment
of a service connection the passage of a lengthy period of
time wherein the veteran has not complained of the malady at
issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999),
aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358
(Feb. Cir. 2002) (en banc).
Finally, certain chronic diseases, including arthritis, may
be presumed to have occurred in service if manifested to a
degree of 10 percent within one year of service discharge.
38 C.F.R. §§ 3.307, 3.309(a). However, as noted above, the
veteran was not diagnosed with degenerative joint disease of
the lumbar spine until 2006, over 25 years after discharge
from active service. Therefore, the presumption of service
connection does not apply in this case.
In sum, there is no competent medical evidence included in
the record to support the veteran's assertion that his
currently diagnosed degenerative joint disease of the lumbar
spine is etiologically related to his active service. The
normal medical findings at the time of separation from
service, as well as the absence of any medical records of a
diagnosis or treatment for many years after service, is also
probative evidence against the claim for direct service
connection. In addition, the facts of this case do not
warrant presumptive service connection for the veteran's
arthritis, because this condition did not manifest to a
degree of 10 percent within one year of his discharge from
active service. Accordingly, the Board concludes that the
preponderance of the evidence is against the claim for
service connection for a lumbar spine disorder, and the
benefit of the doubt rule does not apply. See 38 U.S.C.A. §
5107 (West 2002).
Bilateral Knee Disorder
The veteran maintains he currently suffers from a chronic
bilateral knee disorder. Specifically, the veteran contends
he suffers from chronic knee pain and instability.
However, there is no competent medical evidence that he
currently suffers from a chronic disorder of either the left
or right knee. In this regard, the Board notes that VA
treatment records indicate the veteran has sporadically
sought treatment for knee pain. However, the competent
medical evidence of record does not include a diagnosis of
any chronic knee disorder.
While service medical records indicate the veteran sought
treatment for knee pain in service, the evidence of record
demonstrates that the veteran currently only has complaints
of knee pain. The Board notes that pain is not, in and of
itself, a disability for the purposes of service connection.
Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999)
(holding that pain alone, without a diagnosed or identifiable
underlying malady or condition, does not in and of itself
constitute a disability for which service connection may be
granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001).
To prevail on the issue of service connection, there must be
medical evidence of a current disability. See Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability"
means a disability shown by competent medical evidence to
exist at the time of the award of service connection);
Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence
of proof of a present disability, there can be no valid claim
for service connection as Congress has specifically limited
entitlement to service connection to cases where such
incidents have resulted in a disability).
Thus, the Board finds that there is no competent medical
evidence of a current chronic bilateral knee disorder. The
veteran has produced no competent medical evidence or opinion
in support of his claim that he suffers from such a disorder.
Therefore, the claim for service connection must be denied.
The Board acknowledges that the veteran himself has claimed
he suffers from a bilateral knee disorder. However, as
discussed above, the Board notes that as a layman, the
veteran has no competence to give a medical opinion on the
diagnosis or etiology of a condition. See Espiritu, supra.
Consequently, lay assertions of medical diagnosis or etiology
cannot constitute evidence upon which to grant the claim for
service connection. See Lathan, supra.
ORDER
New and material evidence to reopen a claim of entitlement to
service connection for degenerative changes of the right
shoulder has not been submitted. This portion of the appeal
is denied.
Service connection for chronic Hepatitis C is denied.
Service connection for a lumbar spine disorder, to include
degenerative joint disease, is denied.
Service connection for a bilateral knee disorder is denied.
REMAND
According to the Veterans Claims Assistance Act (VCAA), VA
must notify claimants seeking VA benefits what information or
evidence is needed in order to substantiate a claim. 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38
C.F.R. § 3.159 (2006); see Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). In a letter dated June 2005, the
veteran was advised of VA's duties to notify and assist with
regard to direct service connection for a stomach disorder
and pes planus. However, with regard to a stomach disorder,
the veteran's representative stated at an April 2006 DRO
hearing that the veteran is also claiming entitlement to
service connection for a stomach disorder as secondary to
service-connected post-traumatic stress disorder. With
regards to pes planus, the RO denied the veteran's claim on
the grounds that this condition pre-existed the veteran's
active service.
The Board observes the veteran was never provided VCAA notice
regarding the type of evidence necessary to establish a
secondary service connection claim or aggravation of a pre-
existing condition. Accordingly, the Board concludes that
these claims must be remanded for compliance with the
required notice and duty to assist provisions because it
would be potentially prejudicial to the veteran if the Board
were to proceed with a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993). See Bernard v. Brown, 4 Vet.
App. 384 (1993). As the Board cannot rectify this procedural
deficiency on its own, see Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003), this matter must be remanded for further development.
With regards to the issue of whether new and material
evidence has been received to reopen a claim of entitlement
to service connection for a depressive disorder, the veteran
submitted a timely October 2005 Notice of Disagreement (NOD)
with the September 2005 rating decision denying service
connection for the claimed disorder. The RO has not issued a
Statement of the Case (SOC) to the veteran which addresses
his NOD. The United States Court of Appeals for Veterans
Claims (Court) has now made it clear that the proper course
of action when a timely notice of disagreement has been filed
is to remand the matter to the RO. Manlincon v. West, 12
Vet. App. 238 (1999). Appropriate action, including issuance
of a statement of the case, is now necessary with regard to
this issue. 38 C.F.R. § 19.26 (2007). The veteran will then
have the opportunity to file a timely substantive appeal if
he wishes to complete an appeal.
Accordingly, the case is REMANDED for the following action:
1. Send the veteran a corrective VCAA
notice under 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b), that includes an
explanation as to the information or
evidence needed to establish a
secondary service connection claim and
a claim for aggravation of a pre-
existing condition with respect to the
claims of service connection for a
stomach disorder and pes planus,
respectively.
2. Issue a statement of the case with
respect to the issue of whether new and
material evidence has been received to
reopen a claim of entitlement to
service connection for a depressive
disorder. All appropriate appellate
procedures should then be followed.
The veteran should be advised that he
must complete his appeal of this issue
by filing a timely substantive appeal
following the issuance of a statement
of the case.
3. Upon completion of the above, and any
other development deemed necessary, the
AOJ should readjudicate the issues on
appeal. If any benefit sought is not
granted, issue a supplemental statement
of the case and afford the veteran and
his representative an appropriate
opportunity to respond. Thereafter,
the case should be returned to the
Board, as warranted.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs